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Bad Company: The Corporate Appropriation of Nature, Divinity, and Personhood in U.S. Culture

Abstract

In this article, I provide a cultural history of some of the critical predicates of corporate personhood. I track the Hobbesian lineage of the corporate form, but also the ways the corporation, ascribed with numinous agency and personhood, has filled the cultural space vacated by our transcendence of anthropomorphic notions of god and Nature.

The corporation was created through the consent of the sovereign, and its charter was formulated to reflect not only its uses, but its potential threat, particularly with regard to its concentration of power. Established under the aegis of individual states, the U.S. corporation was initially restricted to specific functions for limited periods. But corporations in many contexts not only have supplanted the Hobbesian state that created them, but displaced the individual person.

Corporations have become super-persons and forms of sovereigns themselves, in part by acquiring human rights and “personalities” and tethering them to the corporation’s inhuman attributes. However, corporations don’t just mimic human behaviors; at best simulacra, or imitations of human life, corporations challenge and destabilize the status of personhood, and what it means to be a person.

In the process, corporations have amassed not just wealth, but personhood (for example, in perhaps surprising ways, the personhood of African Americans). In many ways, the ever-increasing wealth gap in the United States is actually a personhood gap. The overarching effect of corporate personhood, which operates in tandem with privatization, is to dehumanize people, turning them into things that have no rights. Created to encourage entrepreneurial (or reckless and socially irresponsible) risk-taking and minimize personal liability, the corporation evolved into an entity that dynamically diminishes the personal.

The corporation represents a collective, transcendental body that has taken on the role of a deity, and, in U.S. ontology, of nature. The relationships between human and corporate personhood and identity implicate fantasies of the supernal; the superhuman; immortality; and the transcendence of individuality. For these reasons, I treat the corporation not primarily as a commercial enterprise, but as a cultural phantasm, a kind of black hole that draws in more and more cultural phenomena into its orbit. The modern corporation has come to guarantee certain rights at a price, in much the way the Hobbesian state once did. People barter their attributes to corporations; but they are no longer trading liberty for security, but “souls” for identity. As the corporation comes to serve as the de facto guarantor and distributor of culture, it remains amoral at best, and in practice serves as a dominant pathological personality that helps reduce all human endeavor to commercial interest.

Open access
A Legacy Diminished: President Obama and the Courts

Abstract

A central concern for any U.S. presidential administration is its relationship with the federal judiciary. For an administration, this relationship is potentially legacy making or breaking in two ways. First, what is the imprint that the administration leaves on the judiciary? Will a president have the opportunities and institutional capacity to change the political balance of the federal judiciary? Second, how will the judicial branch respond when the administration’s policy plans are, as many inevitably will be, challenged in the court system? Will the administration’s policy preferences be preserved and its agenda advanced, or will court decisions stymie important initiatives and restrict that agenda? This paper examines these questions with regard to the Obama administration’s record. The Obama era saw new levels of diversity in terms of judicial nominees and the courts did sometimes uphold key aspects of the Obama administration’s program to the chagrin of conservative opponents. Yet, with the benefit of two years hindsight, the evidence suggests that the Obama administration’s legacy with regard to both the central questions addressed in the paper was a diminished one. The administration’s capacity to reorient the federal bench was thwarted by the legislative branch, notably obstruction in Senate, with the consequences of that frustration highlighted by the rapid actions taken by the Trump administration and Senate Republicans in 2017-18. Furthermore, on balance, the decisions made by the federal judiciary on matters of significant concern to the Obama White House weakened rather than strengthened the administration’s legacy.

Open access
Politics and Constitutional Law: A Distinction without a Difference?

Abstract

This article examines the relationship between Politics and Law in U.S. Supreme Court decision-making. It argues that three major developments in recent decades have combined to undermine the Court’s status as a legal and judicial institution, and instead define it as political actor, motivated by ideology and the personal policy predilections of the Court’s Justices. The first of these elements is the increasingly political and partisan nature of the Supreme Court appointment process, as witnessed by the recent Gorsuch and Kavanaugh nominations. The behaviour of the President and Senators in these controversial appointments conclusively demonstrates that the country’s leading politicians view the Court as primarily a political body rather than a legal one. The second element of the assault on the Court’s status as a judicial institution is the rise in influence of the behaviouralist school of Supreme Court analysis. Beginning with the work of academics such as Glendon Schubert, the behaviouralists employed new methods and theories in an attempt to debunk the Legal Model of Supreme Court decision-making and to replace it with what is known today as the Attitudinal Model. It forcibly argues that Supreme Court Justices are political in intent and decision, with legal language and arguments being no more than judicial camouflage to disguise their true nature. This applies equally to both conservative and liberal justices. The article identifies the third element of the assault on the status of the Court as a legal institution as coming from Originalist scholars, activists and judges who accuse liberal Justices of having abandoned traditional interpretive methods in favour of redefining the language of the Constitution to suit their progressive political agenda. Originalists acknowledge that their own interpretive methods may lead to results deemed unacceptable to contemporary Americans, but argue that it the duty of the political branches of government, not the courts, to modernise policy and practice. This article concludes that while Originalism has genuine appeal as a theory of interpretation, it is nevertheless both impractical and undesirable. Moreover, rather than returning the Court to the Legal Model, the Originalist campaign has only served to persuade many that the Attitudinal Model is an accurate one. However, the article also argues that the break with Originalism by the Warren Court over segregation has developed into a wholesale change in the Court’s role in American government, one that ill-becomes the unelected judiciary in a representative democracy. It is argued here that the best way to restore the legal and judicial identity of the Court would be a return to the emphasis on ‘judicial role’, once championed by great jurists such as Learned Hand, Oliver Wendell Holmes, Louis Brandeis and John Harlan II. Judicial modesty and restraint would distinguish the Court from the political branches of American government. The Court should decide less and only where the case for a decision of unconstitutionality is very clear and very compelling.

Open access
A Template For Enhancing The Impact of The National Academy of Sciences’ Reporting on Forensic Science

Abstract

The National Academy of Sciences (NAS), established in 1863, is the United States’ leading science and technology think-tank, with an active commitment to advising government. Over the last 150 years, the NAS has, both independently and in conjunction with the federal government, investigated and reported on various issues of importance, ranging from space exploration and biosecurity, to STEM education and immigration. Due to growing concerns about particular disciplines (and specifically their application in legal proceedings), one issue the NAS has reported on between 1992 and 2009 is forensic science. Specifically, the NAS has published six reports commenting on the status of forensic science evidence in the USA, namely DNA Technology in Forensic Science (1992), The Evaluation of Forensic DNA Evidence (1996), The Polygraph and Lie Detection (2003), Forensic Analysis: Weighing Bullet Lead Evidence (2004), Ballistic Imaging (2008), and Strengthening Forensic Science in the United States: A Path Forward (2009). The response of stakeholders (including from political, legal, and academic spheres) to these reports has varied, ranging from shifts in practice and full acknowledgement, to considerable struggles to effectuate systemic reform. Using the different experiences of two reports – Forensic Analysis: Weighing Bullet Lead Evidence (2004) and Strengthening Forensic Science in the United States: A Path Forward (2009) – as a vehicle, this article suggests how the NAS can strengthen the impact of its forensic science reporting, and how stakeholders can better harness the expertise of the NAS.

Open access
Declaration of War: A Dead Letter or An Invitation to Struggle?

Abstract

The Constitution’s declaration of war requirement, superficially straightforward but actually full of ambiguities, originated in a fear of presidential usurpation and recklessness. Yet Congress has responded to political incentives and has declined the assertive role assigned to it. The check on usurpation and recklessness has eroded almost to the vanishing point.

Open access
Normative and Institutional Dimensions of Rights’ Adjudication Around the World

Abstract

The implications of incommensurability for rights’ adjudication tend to be overlooked in much of contemporary constitutional theory. This paper criticizes the dominant “one right-answer” approach to conflicts of rights, and develops an alternative approach that is better suited to constitutional rights’ adjudication in contemporary pluralistic legal orders. It is submitted that the normative reasons for having courts undertake the value-choices implicit in constitutional rights’ adjudication, and for preferring certain legal methodologies over others, must reflect the role of courts in resolving social disputes in the light of specific aspects of the economic, social, and legal life of the polities in which those courts operate. It is further argued that any theory that builds from this approach needs to answer two inter-related questions: when is constitutional rights’ adjudication by courts appropriate, and how rights’ adjudication should be pursued.

Open access
Sanctuary Cities: A Study in Modern Nullification?

Abstract

Since Donald Trump’s election as President of the United States, the sanctuary movement has gained prominence as a form of resistance to federal immigration policy. Sanctuary cities and states have attempted to frustrate the Trump administration’s immigration agenda by refusing to cooperate with Immigration and Customs Enforcement’s (ICE’s) efforts to remove aliens illegally residing in the United States. Academics, pundits and politicians have compared this resistance and non-cooperation to “nullification,” a doctrine typically associated with the South Carolina Nullification Crisis of the 1830s and the Virginia and Kentucky Resolutions of 1798.

This article rejects comparisons between the sanctuary movement and nullification as false equivalencies and explains why the sanctuary movement is not a form of modern nullification. Rather, it suggests the movement is better understood as being similar to “interposition”—a doctrine related to, but distinct from, nullification. In doing so, this paper will clarify the meaning of nullification and interposition by analyzing the developments of these doctrines. Part 1 of this article discusses the historical, theoretical and practical aspects of South Carolina-style nullification, and compares these to that of the sanctuary movement. Part 2 explores the development of nullification and interposition more broadly, with a particular focus on the Virginia and Kentucky Resolutions of 1798. Finally, Part 3 directly compares the sanctuary movement, nullification and interposition, and it connects the movement to the “anti-commandeering” doctrine articulated by the Supreme Court in the 1990s.

Open access
Secularizing a Religious Legal System: Ecclesiastical Jurisdiction in Early Eighteenth Century England

Abstract

The early eighteenth-century English ecclesiastical courts are a case study in the secularization of a legal system. As demonstrated elsewhere, the courts were very busy. And yet the theoretical justification for their jurisdiction was very much a matter of debate throughout the period, with divine-right and voluntaristic conceptions vying for precedence. Placed in this context, the King’s Bench decision in Middleton v Crofts (1736) represented an important step in the direction of limiting the reach of ecclesiastical jurisdiction, and did so on grounds that undermined divine-right justifications of the ecclesiastical court system as a whole.

Open access
Solving Child Statelessness: Disclosure, Reporting, and Corporate Responsibility

Abstract

Statelessness affects around 10 million people globally, many of whom are children. Many public law initiatives to diminish and eradicate statelessness exist, yet the problem persists. This article explores the potential for the private law to contribute to a solution to this problem, leading to increased awareness of the plight of stateless children among the public, investors, governments, and multinational corporations. In doing so, the article examines the role of the private law in regulating the use of so-called “conflict minerals” in the United States and internationally. It recognizes the contribution made by conflict minerals legislation towards finding an effective solution to the conflict in the Democratic Republic of the Congo. The article proposes, amongst other initiatives, a legislative solution to the enduring problem of child statelessness, adapting provisions of the Dodd-Frank Wall Street and Consumer Protection Act which requires corporate reporting and disclosure in relation to international supply chains of public limited companies in respect of conflict minerals, and applying them instead to the causes of child statelessness.

Open access
Agricultural Soil and Agricultural Land – Problems and Challenges from the View of Legal Regulation

Abstract

At present, the issue of agricultural land protection resonates in a wide range of scientific disciplines. Individual approaches to the subject are in line with the relevant field, but the basis should always be grounded in the current legislation. The paper is a technical description focused on identification of the basic terms, relations, problems, goals and challenges and possible legal or legislative solutions of the physical protection of the agricultural soil and the legal protection of the agricultural land as an object of legal relations in the Slovak Republic. Achievement the goals and their legal realisation is possible only if certain legal obstacles are resolved on the national level and level of European Union. This paper represents a basic analysis, which can possibly serve as a support for an attempt to resolve the defined problems by the legislative means.

Open access